Coffey v. Brooks County

• Decision Date: 20 March 1998
• Docket Number: No. A97A2191.,A97A2191.
• Citation: 231 Ga. App. 886,500 S.E.2d 341
• Parties: COFFEY et al. v. BROOKS COUNTY et al.
• Court: Georgia Court of Appeals

500 S.E.2d 341

231 Ga. App. 886

COFFEY et al. v. BROOKS COUNTY et al.

No. A97A2191.

Court of Appeals of Georgia.

March 20, 1998.

Reconsideration Denied April 2, 1998.

Certiorari Granted September 14, 1998.

Evans & Evans, Larry K. Evans, Griffin, Samuel F. Greneker, Barry R. Chapman, Valdosta, for appellants.

Long & Denton, Allen D. Denton, Quitman, Chambless, Higdon & Carson, Thomas F. Richardson, Jon C. Wolfe, Macon, Freeman, Mathis & Gary, Theodore Freeman, Hollberg, Weaver & Kytle, George M. Weaver, Atlanta, for appellees. BIRDSONG, Presiding Judge.

This is an appeal, inter alia, of an order granting summary judgments to appellees Brooks County et al. This appeal arises from a suit for money damages for wrongful death and injuries sustained when several appellants wrecked their vehicles in a washed out section of road, which appellants claim, inter alia, was improperly inspected, maintained and/or barricaded by law enforcement and road department employees of Brooks County. The road washed out on the night of the incidents, during the course of an unusually heavy rainstorm. Appellees fall into three groups: (a) employers—Brooks County and Sheriff Chafin; (b) road superintendents and employees; and (c) deputy sheriffs. This case involves various claims based on appellees' omissions, rather than any affirmative act of negligence by them directly causing the death and injuries at issue. Held:

1. Pursuant to the public duty doctrine "`liability does not attach where the duty owed by the governmental unit runs to the public in general and not to any particular member of the public(,) (except where there is) a special relationship between the governmental unit and the individual giving rise to a particular duty owed to that individual.' " City of Rome v. Jordan, 263 Ga. 26, 27(1), 426 S.E.2d 861. For a special relationship to exist, each of the following requirements must be satisfied: "(1) an explicit assurance by the municipality, through promises or actions, that it would act on behalf of the injured party; (2) knowledge on the part of the municipality that inaction could lead to harm; and, (3) justifiable and detrimental reliance by the injured party on the municipality's affirmative undertaking." Id. at 29(2), 426 S.E.2d 861. The public duty doctrine, however, has been limited in application to situations involving the duty owed by a governmental entity "to provide police protection to individual citizens." Dept. of Transp. v. Brown, 267 Ga. 6, 8(3), 471 S.E.2d 849; accord Hamilton v. Cannon, 267 Ga. 655, 656(1), 482 S.E.2d 370. The public duty doctrine likewise appears to have been limited to situations involving the acts or omissions of third parties whose behavior may be unpredictable. Id. But, this limitation apparently is not so narrow as to limit the doctrine's application only to unpredictable criminal acts committed by third parties.

Whatever limitation was intended by the majority in Hamilton, supra, and Brown, supra, it appears that they have limited the public duty doctrine so as to exclude from its protection public servants other than those engaged in law enforcement activities or who are responsible, under respondeat superior principles, for the acts of law enforcement personnel. Compare Hamilton, supra at 656(2) and 657-659, 482 S.E.2d 370 (dissent). In this context, the law enforcement appellees in the case at bar are Brooks County (to the extent its alleged liability is based on the negligent acts and omissions of the sheriff and his deputies), the sheriff, and his deputies. The public duty doctrine would not be applicable to any other appellees in this litigation, as they would not be providing "police protection" to the public within the meaning of Hamilton, supra and Brown, supra.

We further find, as a matter of first impression, that "police protection" is a concept which is broader in scope than the mere providing of protection to the public against third-party criminal activity and includes the provision of certain other protective police services. However, in view of the somewhat imprecisely defined limitations in Hamilton, supra, and Brown, supra, the doctrine's current scope will have to be established on a case-by-case basis. If the public duty doctrine applies in this case, law enforcement personnel will, in effect, be immune from liability as there exists no special relationship, within the meaning of City of Rome, supra, between the police and any of the appellants.

This Court has construed the public duty doctrine to include police protection provided to the general public against the effects of detected hazardous conditions on the roadways of this state caused by the negligence of some third-party persons or entities. Compare Tilley v. City of Hapeville, 218 Ga.App. 39, 459 S.E.2d 567, cert. vacated, 220 Ga.App. 916. We cannot accept appellees' contention that appellants' claims were predicated solely upon a hazardous situation caused by highway department personnel rather than by nature. Certain other states, however, which utilize the public duty doctrine, have employed it when the police are attempting to protect the general public against the effects of hazardous conditions caused by nature (acts of God). Compare Bradley v. Bd. of County Commrs., etc., 20 Kan.App.2d 602, 890 P.2d 1228, 1232(8) with Mullins v. Town of Clarkstown, 183 A.D.2d 1073, 583 N.Y.S.2d 652, 654 (3 & 4), citing Cuffy v. City of N. Y., 69 N.Y.2d 255, 513 N.Y.S.2d 372, 505 N.E.2d 937.

Under the facts of this case, including the nature of the hazardous condition and the policies of the law enforcement personnel regarding such hazardous highway conditions, we find that the law enforcement officers were engaged in police protection of the public when they inspected and elected whether to blockade public roads within the county which were in various stages of flooding. However, because the recent cases of Hamilton, supra and Brown, supra, limit the public duty doctrine in this state to those situations involving the duty owed by a governmental entity to provide police protection to individual citizens and, because Brown, supra, also appears to limit the public duty doctrine to police protection situations involving the acts or omissions of third parties whose behavior may be unpredictable, we are compelled not to extend the public duty doctrine to provide immunity from liability to the law enforcement officers engaged in the protection of the public at large from hazardous conditions caused by the weather rather than by a third party. Thus, unless the Supreme Court revisits this issue, future protection, by the public duty doctrine, of law enforcement officials in situations involving hazardous or emergency conditions such as this may depend upon the will of the General Assembly.

2. The uncontroverted evidence establishes there was a major storm in the area; numerous sections of public roads were flooding simultaneously, and law enforcement officials and highway supervisors and employees were working to barricade and close those roads considered to impose the most danger to the public. The sheriff's dispatchers were so busy receiving radio and telephone calls from concerned citizens and law enforcement officers that all calls were not recorded.

The doctrines of sovereign immunity and official immunity are promulgated in Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983, as amended in 1991. Pursuant to this constitutional provision, county employees have been included within that class of persons entitled to official immunity from suit for discretionary acts performed without malice in their official capacity. Kordares v. Gwinnett County, 220 Ga.App. 848, 851, 470 S.E.2d 479, citing Woodard v. Laurens County, 265 Ga. 404, 406, 456 S.E.2d 581. But, no official immunity is provided for ministerial acts negligently performed or for discretionary acts performed with actual malice or an intent to injure. Crisp County School System v. Brown, 226 Ga.App. 800, 802(2), 487 S.E.2d 512. Appellants contend that the various county employees were all engaged in the performance of ministerial acts and thus could be held liable for their negligent acts or omissions. Whether acts are discretionary or ministerial depend on the circumstances of the particular case. Id.

In view of the effect of recent holdings of our Supreme Court, as recognized by this Court in some recent cases, there exists a viable issue regarding the extent to which county employees are cloaked with the protection of sovereign as well as official immunity. As clarified in Gilbert v. Richardson, 264 Ga. 744, 750(4), 452 S.E.2d 476, any cause of action averred against a county officer or employee in his official, as opposed to his personal, capacity "is in reality a suit against the state and, therefore, involves sovereign [governmental] immunity." (Emphasis supplied.) Crisp County, supra at 802(1), 487 S.E.2d 512.

(a) Article IX, Section II, Paragraph IX of the Georgia Constitution of 1983 provides: "`[T]he General Assembly may waive the immunity of counties, municipalities, and school districts by law.'" Compare Art. I, Sec. II, Par. IX (a) and (d). "Considering the 1991 [constitutional] amendment [to Art. I, Sec. II, Par. IX,] as a whole, we hold that sovereign immunity is waived by any legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver." Gilbert, supra at 748(3), 452 S.E.2d 476; Art. I, Sec. II, Par. IX (e). We are aware of no legislative act which specifically waives the county's sovereign (governmental) immunity, under the circumstances of this case. Compare Kordares, supra at 848, 470 S.E.2d 479 (OCGA § 32-4-41 does not waive county's sovereign immunity). Thus, as to all causes of action averred against the county, and against the sheriff, his deputies, the road superintendents, and road employees for negligent acts or omissions in...